## Facts

- Florence Chavin created a revocable inter vivos trust and later amended it to direct that, at her death, the trustee distribute the trust residue to her son Leslie if he was “then living,” and if not, to her living descendants in equal shares.
- Florence also executed a will making small specific bequests (including $1,000 to Harlan Miller) and dividing the probate residue approximately evenly between Leslie and her two grandsons, Kenneth and Jeffrey (sons of Florence’s predeceased son, Favel).
- Florence died May 7, 1999; Leslie survived her but was murdered on August 21, 1999, before the trustee distributed the trust assets.
- Leslie’s will named Harlan Miller as his sole beneficiary.
- PNC Bank, as trustee, treated Leslie’s interest in the trust residue as vested upon Florence’s death and determined the residue passed to Leslie’s estate and then to Harlan.
- Kenneth and Jeffrey asserted that “then living” required Leslie to be alive when the trustee actually distributed the trust assets; because he died before distribution, they claimed the residue as the alternate beneficiaries.

## Issues

1. Whether “then” in the trust’s “then living” clause referred to Florence’s date of death or the later date when the trustee distributed the trust assets.
2. Whether Leslie’s interest in the trust residue vested at Florence’s death or was contingent on survival until distribution.

## Decision

- The Delaware Supreme Court reversed the Court of Chancery’s grant of summary judgment for PNC and Harlan.
- The court held that, to effectuate the settlor’s intent, “then” referred to the time of distribution, requiring Leslie to be alive when the trustee distributed the trust assets.
- Because Leslie died before distribution, he did not take the residue; the alternate gift to Florence’s living descendants became effective.
- The court entered summary judgment for Kenneth and Jeffrey as residuary beneficiaries under the trust.
- The court did not decide the alternative limitations defense under 12 Del. C. § 1309.

## Legal Principles

- A trust is construed to give effect to the settlor’s intent, and interpretive presumptions (including early vesting) yield when they conflict with that intent.
- Ambiguous survivorship language such as “then living” may be construed to refer to the time of distribution rather than the settlor’s death, making a gift contingent on survival through administration.
- Extrinsic evidence may be considered to resolve ambiguity and confirm the settlor’s intended dispositive plan.
- An appellate court may reverse summary judgment and enter summary judgment for the nonmoving party when the record shows no genuine dispute of material fact and the party is entitled to judgment as a matter of law.

## Conclusion

The Delaware Supreme Court interpreted “then living” to require survival to the trustee’s distribution date, so Leslie’s death before distribution caused his interest in the trust residue to fail and the residue to pass to Florence’s grandsons as the alternate beneficiaries.


Chavin v. PNC Bank, 816 A.2d 781 (Del. 2003)